Copyright Law - 512f - Online Policy Group v. Diebold (S)

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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

In Online Policy Group v. Diebold, 337 F.Supp.2d 1195 (N.D. Cal 2004), the U.S. District Court of the Northern District of California held that the copyright holder, Diebold, Inc., had violated the DMCA by sending a false takedown notification. Diebold manufactures electronic voting machines and, to its chagrin, internal company emails expressing concerns about security issues with the machines were leaked and posted on the Internet. Two college students from Swarthmore College posted the emails on their websites, where an online newspaper called IndyMedia found them and used them in an article criticizing Diebold. Diebold issued a takedown notice to IndyMedia’s ISP, Online Policy Group (OPG), causing the students and OPG to sue Diebold for knowingly misrepresenting copyright infringement. In court, Diebold never produced specific emails that contained copyrighted content and even admitted that some emails were publishable under fair use. Evaluating fair use, the court found that the emails were not protected by copyright.
The court then held that Diebold had knowingly misrepresented infringing activity by sending the takedown notice. It examined the meaning of a “knowing misrepresentation” under § 512(f): “‘Knowingly’ means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.” Since some emails were “clearly subject to the fair use exception,” and Diebold had admitted this, it was simple for the court to conclude that Diebold knew they were misrepresenting the infringement claim in their takedown notices. The fact that Diebold never filed suit against the alleged infringers also weighed against them.
This apparent victory for Internet users accused of copyright infringement applied an ob- jective reasonable-person standard. The court stated “no reasonable copyright holder” could have believed that emails discussing technical details of voting machines were protectable under copyright law, incorporating reasonableness from the definition of constructive knowledge. The court’s finding that Diebold violated the DMCA’s knowing-misrepresentation clause seemed to herald hope for future Internet users against oppressive takedowns. Only three months later, the Ninth Circuit extinguished it.
BLACK’S LAW DICTIONARY 876 (7th ed. 1999) (“Knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person”).

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